Loice Wairimu Kamau v George Kangara Githigia & 2 others [2015] KEELRC 721 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Annual leave pay in lieu
Awarded as claimed; the Respondent's witness admitted leave pay was computed but never collected, with no computation given
The Claimant's resignation letter showed leave due on 2 September 2011 was untaken. The 1st Respondent confirmed leave pay was calculated but not collected, though no computation was produced. The Court treated this as an admission and awarded the claimed Kshs 6,192/30 without further proof.
House allowance
Awarded at Kshs 37,800/-; the wage of Kshs 7,000/- was not consolidated and no housing was provided
The appointment note showed the wage was 'without any other benefits'. Under section 9 of the repealed Employment Act, cap. 226 and section 31 of the Employment Act, 2007, the employer had to provide housing or a rent allowance, and wages are not consolidated unless expressly stated. The Respondents did not controvert the sum claimed, so the award was justified.
Overtime
Dismissed for want of proof
The Claimant asserted she worked Saturdays until 4.00pm while the Respondent's witness said work ended at 1.00pm on Saturdays. The Claimant did not disclose agreed weekly working hours, their spread over the week, or the statutory minimum hours for the sector, so the claim failed in contract and statute.
Severance pay/gratuity/service pay
Dismissed; resignation is not redundancy and does not attract service pay under section 35(5)
No contractual or statutory foundation was laid for severance pay or gratuity. Severance pay is confined to redundancy, and the Claimant resigned. Even if construed as service pay under section 35(5) of the Employment Act, 2007, entitlement requires termination of employment, which resignation is not.
Legal principles established
#- An employer has a statutory obligation to provide housing accommodation or pay a reasonable house allowance, and under the Employment Act, 2007 a wage is presumed not consolidated unless expressly stated so.
- Severance pay is only payable in cases of redundancy, not on resignation.
Court orders
#- 1.Respondents to pay the Claimant annual leave of Kshs 6,192/30
- 2.Respondents to pay the Claimant house allowance of Kshs 37,800/-
- 3.Total award of Kshs 43,992/- to be paid to the Claimant
- 4.Heads of claim for overtime and gratuity dismissed
- 5.Claimant to have costs of Kshs 15,000/-
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a trade dispute/terminal dues claim (Cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Loice Wairimu Kamau v George Kangara Githigia & 2 others [2015] KEELRC 721 (KLR)", Case Analysis (2015). Not stated (Cause commenced 14 August 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/721/eng@2015-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.